The opinion of he court was delivered by
PARKER, J.:
This was an action to recover earnest money paid on a real estate contract. The plaintiffs recovered, hence this appeal.
It is undisputed that on November 20, 1954, the defendants F.R. Holm and Lois W. Holm, as sellers, and the plaintiffs W.R. Kinmonth and Mary I. Kinmonth, as purchasers, entered into a contract in writing which, so far as pertinent to the issues involved, reads:
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Plaintiffs commenced the action by filing a petition wherein they made the contract, averred to have been prepared by the defendant Griffith as agent for the other defendants, a part of such pleading and further alleged:
After recital of the foregoing allegations, and others which have not been quoted because they are not important to the issues, the petition alleged that Griffith had neglected and refused to return the plaintiffs' down payment of $1,500 and prayed for judgment against all defendants in that amount.
In their answer, after denying all other allegations of the petition,
For all purposes essential to disposition of the cause it may be stated the separate answer of defendant Griffith contains allegations similar to those pleaded by his codefendants.
With issues joined as related the cause was tried by the court. During the trial evidence was offered by plaintiffs and received to the effect that prior to execution of the contract it was agreed by the parties "that financing in the amount of $13,000.00" was to be FHA financing only and that no part of such sum was to be raised through the medium of encumbrances on other property, either real or personal, owned by plaintiffs. At the close of the trial, on motion of defendants, all this evidence was stricken. Notwithstanding the court found that the $1,500 in controversy, which theretofore had been paid to the clerk of the district court by defendant Griffith, should be returned to the plaintiffs and rendered judgment accordingly. Defendants Holm and Holm then perfected this appeal.
A careful analysis of the record and all contentions advanced by the parties in their briefs and on oral argument discloses that there are actually but two questions involved in this appeal. We shall now consider the one of first importance.
Boiled down and stripped of all excess verbiage the essence of appellants' first contention is that the trial court erred in concluding that the provisions of the contract, heretofore quoted, were to be construed as contemplating that appellees were entitled to a return of the down payment made by them if unable to obtain financing in an amount of $13,000 on the particular property involved in the sale. Otherwise stated, and without detailing the evidence on the point, appellants' position is that if a loan of $13,000 could not be obtained upon such property the contract requires that appellees make up the difference between that sum and what could be obtained by placing encumbrances on other property, either real or
Appellants' next contention is that the judgment is contrary to the evidence. In view of what has been heretofore stated and held the very most that can be said for appellants' position on this point is that the evidence with respect to whether financing of the particular property involved in the sum of $13,000 could be obtained was conflicting. No rule is better established in this jurisdiction than the one that when supported by any substantial competent evidence a trial court's findings and decision on a factual issue will not be disturbed on appellate review even though the record discloses some evidence which might have warranted a contrary decision. For some of our latest decisions announcing this rule see Freeman v. Keltner, 175 Kan. 37, 259 P.2d 228; Spencer v. Supernois, 176 Kan. 135, 268 P.2d 946; Condon National Bank of Coffeyville v. Krigel, 176 Kan. 279, 287, 270 P.2d 232; In re Estate of Whitmore, 178 Kan. 491, 290 P.2d 105. For numerous others see West's Kansas Digest, Appeal and Error, § 1010[1]; Hatcher's Kansas Digest [Rev. Ed.], Appeal and Error, §§ 507, 508.
Since the finding appellees were unable to obtain financing in the amount of $13,000 inheres in the trial court's decision requiring the return of the down payment of earnest money the rule of the foregoing decisions compels a conclusion its finding to that effect cannot be disturbed.
In conclusion it should be stated we have not overlooked appellants' motion to strike appellees' counter abstract from the files on the ground it is not certified in the manner prescribed by our rules.
We find nothing in the record to warrant appellants' contentions that the trial court erred in overruling their demurrer to the evidence; in overruling their motion for a new trial; or in the rendition of its judgment. Therefore such judgment must be and it is hereby affirmed.
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